Featured Domains

Paper points to questionable rights protection mechanisms in new TLDs.

Electronic Frontier Foundation (EFF) and Public Knowledge have released a whitepaper comparing policies across various domain name registries, and warning domain registrants to be wary of new top level domain names.

The whitepaper points to added rights protection mechanisms in new top level domains, such as Uniform Rapid Suspension and the Trademark Clearinghouse, as cause for concern. It takes particular aim at Donuts and Radix for their “trusted notifier” arrangements with Motion Picture Association of America (MPAA) in which they will work with MPAA to remove domains that infringe copyright.

While I appreciate what the EFF is trying to say, and I agree with some of its concerns, it’s important to consider how things like the trusted notifier program work in practice. Donuts is very careful before taking a domain down due to an MPAA notification. Unless you’re hosting copyrighted video content, it’s probably not something you need to worry about.

The paper recommends using .onion domains on Tor for the ultimate protection but points out that these domains don’t work for most internet users. You won’t find these sites in Google and users need a special browser. In other words, very few people will find your site.

It’s a bit ironic, really. Electronic Frontier Foundation, which defends privacy and online freedoms, was itself spoofed in an attempt to spread malware.

The organization has won control of the spoof site, ElectronicFrontierFoundation.org, through a cybersquatting complaint with World Intellectual Property Organization.

The domain name was used as part of “Pawn Storm“. A spear-phishing attack included a link to the fake site. The perpetrators, potentially linked to the Russian government, used a Java vulnerability to take control of the visitors’ computers.

ElectronicFrontierFoundation’s real website is EFF.org.

With the victory, the offending domain name should be transferred to EFF within 10 days.

Based on a search at UDRPsearch, this is the first time EFF has used the Uniform Domain Name Dispute Resolution policy to take down or recover a domain name.

In an analysis EFF posted online, the group says the bill would “break the Internet one domain at a time â€” by requiring domain registrars/registries, ISPs, DNS providers, and others to block Internet users from reaching certain websites.”

EFF makes several points, some of which echo my take on the bill.

1. This is a censorship bill that runs roughshod over freedom of speech on the Internet.

2. It is designed to undermine basic Internet infrastructure.

3. COICA sends the world the message that the United States approves of unilateral Internet censorship

There’s some good insight in EFF’s analysis. I’m particularly worried about #2 and #3.

Among the issues EFF draws attention to is an internet blacklist of domains not taking down but deemed in violation. EFF says domains will get on the list by a “McCarthy-like procedure of public snitching”.

The Electronic Frontier Foundation (EFF), the Center for Democracy and Technology, and the American Civil Liberties Union of Kentucky filed a friend of the court brief with the Kentucky Supreme Court to uphold a lower court’s decision blocking the seizure of gambling domain names.

“No state can order a domain name registrar over which it does not have jurisdiction to do anything. The commonwealth simply hasn’t satisfied its burden here,” said EFF Senior Staff Attorney Matt Zimmerman. “Without these important protections, no website would be safe from arbitrary decisions by foreign courts to silence online content that they don’t like.”

“Under Kentucky’s legal theory, any government in the world would be able to seize any website domain name if the site has content that the government does not like,” said John Morris, general counsel for CDT. “Such a theory, if upheld, would be devastating to free expression around the world.”

Indeed, we could see a Muslim country try to seize MakersMark.com and JimBeam.com. How would Kentucky feel about that?

The press release also mentions that EFF is joined by other organizations, including the domain industry’s Internet Commerce Association.

Here are some things for domainers to consider now that the Kentucky case has been overturned.

The Kentucky Court of Appeals has overturned a trial court’s ruling that the state could seize domain names associated with online gambling. The Court of Appeals ruled that domain names weren’t “gambling devices”, which was part of the statute used to justify seizing the domains.

As Michael Berkens pointed out, this is a narrow victory. Electronic Frontier Foundation writes that the ruling suggests to the Kentucky legislature that it can change the definition of “gambling device”, but it still believes the case will be without merit because “In addition to this type of domain name seizure still raising serious First Amendment, due process, and other constitutional problems, Kentucky courts (as pointed out in our joint amicus brief) also lack the authority to directly order out-of-state registrars to turn over customer domain names.”

The Kentucky domain seizure case prompted a lot of cries to move domain names to domain name registrars located outside the United States. As I’ve written before, I don’t think this is a good idea. For a number of reasons, I think the United States is one of the safest places to keep your domains. In fact, U.S.-based Geo domainers who own foreign city and country names will keep the domains under the ownership of a U.S. company and lease them to a foreign subsidiary. And it seems that foreign interests in ICANN are mostly concerned with whether particular domain names and new TLDs are “moral”.

To be sure, there are some countries that may provide more protection for your domain names. If nothing else, these countries will stall efforts to seize domain names.

If you’ve been thinking about moving your domain names (or other aspects of your business) offshore, you should consider going to Domainer Mardi Gras next month. The entire agenda is about risk mitigation. I will be on a panel about moving offshore.